Kando v Efie [2022] PGDC 71; DC8074 (5 May 2022)

DC8074

PAPUA NEW GUINEA.

CIVIL JURISDICTION
DC NO: 280/2010.

IN THE MATTER BETWEEN:

ROMNEY KANDO
Complainant.

AND:

SINAS JERRY EFIE.
Defendant

Popondetta: Michael W. Apie’e

2022: April 12^th to May 05^th.

CIVIL PROCEEDINGS.
-Claim of outstanding Court Ordered Compensation for taking care of Defendants Block during Defendants Absence for a number of years.
-Compensation not specified by the Court Ordering it.
-Assessment on appropriate Compensation to be fixed

EVIDENCE-
Complainant relies on Originating filings and Previous Court Orders and Valuation Report dated 2/08/13 by Mr. Roger Irurapa Jr. of Division of Lands Oro administration.

HELD:

1. Judgement entered for the Complainant.
   

Cases Cited:

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:

District Court Act.

Representation:
Complainant appears for himself.
No appearance by the Defendant.

JUDGEMENT AND ORDERS ON ASSESSMENT.
Background.

1. This case is a follow up from two prior Proceedings and Adjudications by different Magistrates in respect of the Same Land Portion issue at different Times.
   
2. Firstly, on the 18^th of July 2012, Magistrate His Worship Mr. Danny Wakikura issued orders for the;
   
   1. Defendant (Romney Kando) to be evicted from the Property Namely Portion # 101236 at Isivini Road 6.
      
   2. And also ‘For the Defendant (Romney Kando) to be paid some reasonable payment for keeping the block’ in the absence of the Complainant then and Defendant now, during his flight away from Oro Province.’
      
3. The Complainant then Sinas Jerry Efie further went before Principal Magistrate, Late Martin Ipang as he then was on the 13^th of August 2013 and got a further confirmation of the Eviction orders when the Late Magistrate ordered as follows;
   
   1. Defendant is now Ordered to vacant (Vacate) the Block of Land Portion # 101236 and give up possession to the Complainant within 21 days as of 12/08/13.
      
   2. Failure to do so, Police shall assist in the Eviction with Reasonable and Necessary force.
      
4. Thereafter the Complainant then and Defendant now Sinas Jerry Efie regained control over his titled Property, namely Portion # 101236, but according to the Defendant then and Complainant now Romney Kando, the said Sinas Jerry Efie has failed to consider and pay some reasonable compensation for the years the Complainant had being keeping and caring for Portion #101236 in his absence.
   
5. The complainant therefore seeks Orders from this court to affirm and finalize the Originating Orders by Magistrate Wakikura issued on the18^th of July 2012.
   
6. The matter came back to this Court by way of CI No: 280 of 2010 filed by Romney Kando on the 17^th of September 2020 seeking enforcement of a Standing Court Order against the Defendant Sinas Jerry Efie to settle some reasonable compensation for the Complainants efforts in keeping Portion # 101236 during the Defendants absence.
   
7. This is therefore a Trial on Assessment of Damages pertaining to a Standing Court Order issued by Magistrate Wakikura on the18^th of July 2012.
8. The Complainant relies on his Originating documents filed on the 17/09/20 and also on a Statement of Claim dated 08/09/21, Affidavit filed on10/11/21, and a Valuation Report compiled by Mr. Roger Irurapa Jr. or Division of Lands, Oro Provincial Administration.
   
9. This matter was called on several occasion between the Parties and the Defendant attended the mentions of this matter initially and he denied Liability and also filed what he titled as ‘Statement of Fact’ wherein he claimed the following;
   
   1. He (Sinas Jerry Efie) is the title holder of Portion # 101236.
      
   2. The Complainant was merely a care taker for over 17 years from 1994 to the date of the Orders by his Worship Magistrate Wakikura.
      
   100. During that time the Complainant had benefited from Oil Palm Harvest over the 17 years from 1994.
        
   4. The Defendants estimated that the Complainant through Oil Palm Harvests had potentially derived over K391,000.00 in monetary benefits from his possession and control of Portion # 101236.
      
   5. Therefore, the Complainant should simply walk away and not make any more fuss about his K10,000.00 claim.
      

OBSERVATIONS:

10. The Court will observe as follows on the Evidence on file;
    
    1. The Defendant in this case Mr. Sinas Jerry Efie had left his block unattended for about 17 years or more and the Complainant Mr. Romney Kando sought permission from Oil Palm Industry Corporation (OPIC) the monitoring and governing Agency for Oil Palm Blocks and Growers, and assumed control of that Block Portion # 101236 from 1994 onwards.
       
    2. During that time, even though it is not particularized not is it quantified, Romney Kando was enjoying the benefits and fruits from that Portion in terms of Oil Palm Harvest and Earnings and use of the land itself. (according to the Defendant)
       
    3. On the 18^th of July 2012, His Worship Mr. Danny Wakikura on the basis of evidence presented before him Ordered Portion # 101236 return back to the said Sinas Jerry Efie, but also order some reasonable payment be made to Romney Kando for his Care and Custody over the Portion for the 17 or so years Sinas Jerry Efie himself was absent from the Land in issue.
       
    4. This Court Surmises that since the Defendants title to Portion # 101236 is an LTC title or Land Titles Commission Title, it is invariably a Lease hold title and therefore Indefeasible under Section 33 of the Land Registration Act.
       
    5. Therefore, the ruling of Late Kapi DCJ in the Gawi v. PNG ready Mix Case wherein he held that ‘If the one Claiming Ejection of someone else has clear title then this Provision should be invoked, but if such persons Title or Claim to the Alienated Land is ‘Bone Fide’ in Dispute, then Section 6 cannot be invoked’ was probably relevant in the consideration of Magistrate Wakikura in Ordering the Eviction of Romney Kando and Vacant possession of Portion # 101236 to go to Sinas Jerry Efie.
       
    6. When Romney Kando persisted in his occupation of Portion #101236, his Worship Martin Ipang (late) again on the same considerations and basis issued orders on the on the 13^th of August 2013 to further order Romney Kando’s eviction from the said Portion # 101236 in favour of Sinas Jerry Efie.
       
    7. This Current Court (Myself) is the third District Court/Magistrate to preside over an aspect this matter that ought to have being resolved promptly in 2012 when His worship Danny Wakikura gave his Orders.
       
    8. However, the Indefinite and indeterminate nature of the remaining portion of the Learned Magistrates order stating ‘the Defendant (Romney Kando) to be paid some reasonable payment for keeping the block’ is probably the reason for this matter remaining unresolved thus far.
       
    9. The Complainant then Sinas Jerry Efie was not imposed with a Definitive Amount to pay to the Defendant then and Complainant now Romney Kando as compensation for his efforts for the 17 years or more that he was on the Block and so the Parties have been bickering over this aspect of His Worship Mr. Wakikura’s orders to this current date.
       
    10. The Complainant Romney Kando had a letter dated on the 05/10/2010 written for him by Mr. Roger Irurapa vouching for his efforts on Portion # 101236 leading up to his contention with Sinas Jerry Efie after the latter returned from his Long absence from the said Portion # 101236 and sought to resettle or regain control of this Portion from the Complainant.
        
    11. The Complainant Romney Kando also relies on a Valuation Report dated 21/08/2013 done for him by the Oro Provincial Lands Advisor Mr. Roger Irurapa Jr. valuated at K7, 702.00 and Claims K10, 000.00 for his 17 years of Occupation and Car-Taking over Portion # 101236.
        
    12. Further, Romney Kando also relies on an undated Support Letter given by Mr. Alexander Kimana, as Oil Palm Industry Corporation (OPIC) Divisional Manager for Igora, in which it is revealed that after the Block was abandoned by Sinas Jerry Efie in 1987, Romney Kando came in as Care-taker approved by OPIC and improved and maintained this block in working Order for over 17 to 20 years including planting and installing a 4 hectares Oil Palm block, for which he ought to be compensated appropriately.
        
    13. I believe, Learned Magistrate Wakikura was led by these documents especially the Letter dated 05/10/10 by Mr. Irurapa and the undated letter from OPIC’s Mr. Alexander Kimana to add the indefinite Portion to his Order of 18^th of July 2012 for Sinas Jerry Efie to consider and pay some reasonable amount to Romney Kando for keeping the block in his absence.
        
    14. The Defendant however claims in his ‘Statement of Fact’ dated 23/12/21 as recorded in Paragraph 8 above that ‘During that time the Complainant had benefited from Oil Palm Harvest over the 17 years from 1994.’
        
11. In the final Analysis, the Court finds and Rules as follows that;
    

1. This Current District Court is not bound by any Adjudication or findings made by other District Courts, nor is it my intention to be sub-servient to any prior adjudication or findings by other Magistrates or Courts, however, in all the circumstances of this case, I would agree with the findings of Mr. Wakikura that the Complainant ought to be appropriately compensated for his 17 to 20 odd years of efforts on Portion # 101236 whilst the Defendant was away from that Land Portion.
   
2. Hence this Court Affirms that Relevant Portion of Mr. Wakikura’s Adjudications on 18^th of July 2012 and Rule that the Defendant ought to Compensate the Complainant for his efforts on Portion 101236.
   

Assessment:

12. The Complainant primarily relies on Mr. Roger Irurapa Jr’s Calculations of 21/08/2013 of K7,702.00 to found his K10,000.00 claim against the Defendant, but after perusing this Calculations carefully I note the following;
    
    1. The Calculation is based largely on assessments made in 2013 not only on Oil Palm Re-plantings but also other food crops and other Cash crops such as Coconut and Betel-Nut Trees and other Fruit tree’s like Laulau’s, Rambutan’s, Mango’s, Bread-fruit Trees and others, hence the bloated amount assessed at K7, 702.00.
       
    2. It is not revealed what value these Crops/items add to the Block that the Defendant is benefitting from.
       
    100. The Report only accounts for 240 matured Oil Palm trees supposedly planted by the Complainant.
         
    4. Oil Palm Tree’s being the main-stay or Business of this block, the Court will consider these as the Assessable instalments or Items that the Defendant ought to pay for.
       
    5. Of All the other items except for maybe the Coconuts and Betel-nut Trees are cumbersome, unverifiable and add no relevant or considerable or Probative value to the block and so will be disregarded by this court.
       
    6. The Complainant gained control of Portion # 101236 after the Defendant Fled Oro Province during the ‘Oro for Oro’ saga and did not make arrangements for a care taker to keep the Block for him.
       
    7. The complainant upon his own initiative sought permission from OPIC and entered and took possession of Portion # 101236 mainly to produce Oil Palm for the Oil Palm Industry and over the years installed these trees and plants, so in respect of these additional Ornamental and Fruit and Food trees and crops planted, it can be rightly said that the Defendant never agreed to their instalment on his block and so should not be made to pay for them.
       
    8. Regarding the number of years, the Complainant possessed and controlled Portion # 101236, he maintained and kept the Block in shape until the Defendant return and after the cases and decisions by other Magistrates mentioned above, the Defendant is able to regain control over a viable and operational Block instead of a run-down and overgrown Block of Land if the Complainant had not intervened.
       
    9. For that, he ought to appreciate and pay the Complainant some form of consideration for his efforts.
       
    10. This Court is nevertheless mindful of the Defendants contention that the Complainant had being living on and benefitting over the course of 17 or more years from Oil Palm Harvests and sales wildly estimated by the Defendant at K390,000.00.
    11. Even though the grossly exaggerated amount of K390,000. 00 alleged to have being earned by the Complainant for 17 years is rejected by this court, it nevertheless finds that the Complainant had for more than 17 years or so benefitted somewhat from his possession and control of Portion # 101236, and that ought to be considered as benefit derived by the Complainant to be considered in the final analysis of this case.
        
    50. So, this Court will adjudge and assess as follows;
        
        1. 240 Mature Oil Palm Tree’s installed by the Complainant at K15.00 per Tree = K3600.00.
           
        2. All other Plantings are given a token value of K400.00.
           
        3. For the time effort and sacrifice on the block the court assesses and award a token K2000.00 as an appropriate consideration in the vein expressed by his Worship Danny Wakikura.
           
    13. On the Whole, this Court assesses K6,000.00 as an appropriate amount for the Defendant to pay to the Complainant as appropriate compensation for his effort for the 17 or so years he was Caring for the block, given that he had also derived some benefits from possessing Portion # 101236 during that 17 years.
        
13. The Court having made the above Observations will accordingly rule as follows;
    
    1. It is Assessed and Ordered that the Defendant Compensates the Complainant with K6,000.00 within 60 days by no later than Tuesday the 05^th of July 2022.
       
    2. In Default, enforcement Proceeding are to ensue against the Defendant.
       
    3. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainant in person.
Defendant in person.